Supreme Court

Devika Biswas v. Union of India & Ors.

MANU/SC/0999/2016

14.09.2016

Constitution

Freedom to exercise reproductive rights includes right to make choice regarding sterilization on basis of informed consent and free from any form of coercion

Instant public interest petition raised very important issues concerning entire range of conduct and management, under auspices of State Governments, of sterilization procedures wherein women and occasionally men are sterilized in camps or in accredited centres. The issues raised also include pre-operation procedures and post-operative care or lack of it. A sterilization surgery does not appear to be complicated and yet several deaths have taken place across country over the years. Undoubtedly, this needs looking into by Government of India and State Governments and remedial and corrective steps need to be taken. Persons who are negligent in the performance of their duties must be held accountable and the victims and their family provided for. It is time that women and men are treated with respect and dignity and not as mere statistics in the sterilization program. Petitioner Devika Biswas is a public spirited individual and a health rights activist with extensive professional experience in the development and health sectors.

Population control and family planning has been and is a national campaign over the last so many decades. Therefore, responsibility for success or failure of population control and family planning program (of which sterilization procedure is an integral part) must rest squarely on shoulders of Union of India. It is for this reason that, Union of India has been taking so much interest in promoting it and has spent huge amounts over the years in encouraging it. Supreme Court viewed that, population Control and Family Planning is a matter of national importance and of common concern of Union and States. It is imperative for both Union of India and State Governments to implement schemes announced by Union of India in a manner that respects fundamental rights of beneficiaries of scheme. Given structure of cooperative federalism, Union of India cannot confine its obligation to mere enactment of a scheme without ensuring its realization and implementation.

With respect to sterilization, Draft National Health Policy states that sterilization related deaths are a direct consequence of poor health care quality and is a preventable tragedy. It also recognizes that female sterilizations are safest if performed in an operation theatre which is functional throughout the year and by a professional team with support systems which are in constant use. Camp mode for such operations itself becomes a reason for unsatisfactory quality. More monetary and human resource investment is required for National Rural Health Mission. Coercive methods are not justified and are not even effective in meeting the goals of population control. Improved access, education and empowerment should be the aim. Over time, there has been recognition of need to respect and protect the reproductive rights and reproductive health of a person. Reproductive health has been defined as “the capability to reproduce and freedom to make informed, free and responsible decisions. It also includes access to a range of reproductive health information, goods, facilities and services to enable individuals to make informed, free and responsible decisions about their reproductive behavior.

This Court recognized reproductive rights as an aspect of personal liberty under Article 21 of Constitution in Suchita Srivastava v. Chandigarh Administration. The freedom to exercise these reproductive rights would include right to make a choice regarding sterilization on basis of informed consent and free from any form of coercion. Cases of Paschim Banga Khet Mazdoor Samity and Bandhua Mukti Morcha have emphasized that, State’s obligation in respect of fundamental rights must extend to ensuring that, rights of weaker sections of community are not exploited by virtue of their position. Thus, policies of Government must not mirror the systemic discrimination prevalent in society but must be aimed at remedying this discrimination and ensuring substantive equality. In this regard, it is necessary that policies and incentive schemes are made gender neutral and unnecessary focus on female sterilization is discontinued.

National Health Policy has not yet been finalized despite passage of more than one and a half years. Union of India is directed to take a decision on or before 31st December, 2016 on whether it would like to frame a National Health Policy or not. In case the Union of India thinks it worthwhile to have a National Health Policy, it should take steps to announce it at earliest and keep issues of gender equity in mind as well.

Relevant

Bandhua Mukti Morcha v. Union of India & Others, Paschim Banga Khet Mazdoor Samity v. State of W.B., Suchita Srivastava v. Chandigarh Administration

Tags : Sterilization Consent Reproductive rights

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